[2025:RJ-JD:22924]

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Misc. Appeal No. 1485/2022 Gopal Krishna Bhuwalka S/o Sh. Satyanarayan Ji, Aged About 75 Years, R/o Jalan Marg, Ratangarh, Distt. Churu.

----Appellant Versus

1. Vinod Kumar S/o Late Sh. Kanhaiya Lal Ji, R/o Ratangarh, Distt. Churu At Present Residing At C/o Fibertex Industries (India), Plot No. 89, Secotr No. 6, Faridabad, Haryana.

2. Vinay Kumar S/o Late Sh. Kanhaiya Lal Ji, R/o Ratangarh, Distt. Churu At Present Residing At C/o Fibertex Industries (India), Plot No. 89, Secotr No. 6, Faridabad, Haryana.

3. Pawan Kumar S/o Kishanlal Ji, R/o Ward No. 7, Ratangarh, Distt. Churu.

4. Bajranglal Prajapat S/o Sh. Girdharilal Ji Prajapat, R/o Village Dabla, Post Khonsli, Tehsil And Distt. Churu.

5. Pawan Kumar Soni S/o Sh. Mohan Lal Ji Soni, R/o Near Rani Sati Temple, Post Ratangarh, Distt. Churu.

6. Gulam Mohd. Khan S/o Sh. Mahnu Khan, R/o Ward No.

37, Ratangarh, Distt. Churu.

----Respondents For Appellant(s) : Mr. O.P. Mehta For Respondent(s) : Mr. G.R. Goyal HON'BLE MS. JUSTICE REKHA BORANA

Judgment

13/05/2025

1. The present misc. appeal has been filed against order dated 20.07.2022 passed by the Additional District Judge, Ratangarh, District Churu in Civil Misc. Case No.17/2001 whereby the application under Order 9 Rule 13, CPC as filed on behalf of the defendant appellant Gopal Krishna stood dismissed.

2. The facts are that suit No.75/92 (48/87) was filed by the plaintiffs for possession, declaration and mesne profit against 13 defendants, the present appellant Gopal Krishna being defendant No.5. After being served in the said suit, power was filed on behalf of appellant - defendant no. 5 in the year 1987 itself. The suit was pending before the Court of District Judge, Churu and was subsequently transferred to the Court of Additional District Judge, Ratangarh in the year 1992. After the suit being transferred to Ratangarh, as none appeared on behalf of appellant defendant no. 5, vide order dated 29.04.1992, it was directed to proceed ex parte against him. Ultimately, ex parte decree dated 11.12.2000 was passed in the suit.

3. An application under order 9 Rule 13, C.P.C was filed by appellant – defendant No.5 on 21.05.2001 before the learned Trial Court to get ex parte decree dated 11.12.2000 set aside. It was submitted in the application that the appellant was not informed by his counsel of the suit proceeding been transferred to Ratangarh and hence, he could not pursue the same. Subsequently he got unwell and suffered from mental disorder and hence, could not pursue the suit proceedings. It is only on 20.05.2001 when one Deendayal Nohal met him and informed him of some Court Commissioner having visited the property in question that he came to know about the ex parte decree and hence, moved the application with a prayer to set aside the same on the very next date that is, 21.05.2001.

4. The application as filed on behalf of the appellant was dismissed by the learned Trial Court with a specific finding that the appellant was very well aware of the suit proceedings been transferred to the Court of ADJ, Ratangarh. The learned Court took into consideration application dated 19.08.1992 filed by the appellant before the Court at Ratangarh with a submission that as earlier he was not informed by his counsel of the suit proceeding been transferred to Ratangarh, he now be informed of the next date. The Court concluded that even if the appellant was not aware of the transfer of the suit proceeding to Ratangarh earlier, but definitely was aware on 19.08.1992 on which date he filed the application before the Court.

5. Further, the information as prayed for by him was provided by the Court and the counsel who filed power on behalf of the appellant even noted the next date in the suit proceedings. Despite the same, appellant - defendant no.5 did not choose to appear in the subsequent suit proceedings and hence, the ex parte decree was rightly passed.

6. The Court observed that the